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The Other Vote in the Senate Today

September 22, 2010 - by Donny Shaw

The DISCLOSE Act vote is going to get most of the attention in the Senate today (and for good reason), but there’s something else interesting on the calendar today as well — a “resolution of disapproval” regarding a recent rule update from the National Mediation Board that eases the union formation process for airline and train workers.

The resolution is S.J.Res.30, and it may well be the only bill in Senate to be co-sponsored by all 41 members of the Republican caucus.

Before I get into the specific issue at hand with S. J. Res. 30, I should say something about resolutions of disapproval in general. Resolutions of disapproval were created by the Congressional Review Act of 1996 in an attempt to give Congress away to keep rogue federal agencies in check. Theoretically, they allow Congress to veto federal regulations that have already been enacted by passing a joint resolution (through both chambers) and have it signed into law. They can’t be filibustered, so there’s no 60-vote cloture hurdle for resolutions of disapproval like there is for more bills. However, there’s nothing stopping the President from vetoing resolutions of disapproval, and, as we know, presidential vetoes take a 2/3rds majority in both chambers to be overturned. So, there is, in effect, often a 67-vote hurdle to resolutions of disapproval. All in all, resolutions of disapproval are a sort of anomalous and arcane congressional tool that don’t work well and don’t even serve much of a special purpose.

Okay, time to step out of the weeds.

Back in May, the National Mediations Board (NMB), which is the smaller labor agency that deals just with the transportation industry, issued a ruling (.pdf) stating that when they count ballots in union-formation elections, they will certify a union if more than half of all those voting voted in favor, just like we do in our public elections for Congress and such. Since 1934, the NMB has had a tougher policy on how they count votes; tougher than the rule used by the larger National Labor Relations Board (NLRB). Unlike the NLRB, the NMB has until now only certified unions if more than half of all eligible voters (as determined by the employer party) cast a vote in favor.

The May ruling puts NMB elections almost in parity with NLRB elections, but NMB elections are still tougher. In order to file a sucessful petition for a union election with the NMB, organizers must show proof of support from at least 35% of all workers. For NLRB elections, organizers only ave to show 30% support.

Needless to say, Republican groups and the manufacturing industry attaked the NMB’s ruling furiously when it was announced. Some even called it a “mini card check”, which is a reference to the proposed Employee Free Choice Act that would allow a union to be certified without an election if more than half of workers have signed petition cards. Of course, the May NMB ruling bears almost no resemblance to the Employee Free Choice Act except in that it makes it a little easier for workers to unionize than it was before the rule.

So, the question now stands before the Senate. Will 10 or more Democrats defect today and vote with Republicans against the NMB ruling? If so, the resolution will go to the House for a follow-up vote. By the off chance that both chambers pass it, it would then be sent to Obama to be signed into law or (a million times more likely) be vetoed and sent back to Congress. It should be noted that the CRA’s resolution of disapproval power has never been successfully used by a Congress against a sitting administration. On a few occasions it has been used by successor Presidents and Congress’ to undo regulations of a former administration, but we’re not in that situation right now. Regardless of how today’s Senate vote turns out, this resolution is virtually guaranteed to be defeated in the end.

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